Free Speech and the Old SA Flag: A Testing Case

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In the final build-up to the election there was national news coverage about the apartheid-era South African flag. It has been displayed on countless screens as part in reports about the case. Talk about “bringing back apartheid” abounds. If the Equality Court, and the country, is to stand a chance, it must resist the abstract and seek truth from facts.

In the last week of April, the Equality Court convened for two days to hear the case of Nelson Mandela Foundation and Others (Jozi Pride, the Human Rights Council) against AfriForum and Others (FAK). The question before the Court was whether the national flag from 1928-1994 should be permitted, legally tolerated but socially shunned, or forbidden by the long arm of the law.

Freedom of speech debates often devolve into clashes between two abstract views. One side says the government should simply not interfere, all speech is protected speech. The fashion police should regulate the market of ideas without resorting to the use of actual, armed police. The other side says that the world is unfair, the marketplace of ideas is a distorted arena – only by forcing people to behave properly can intangible goods like trust and mutual respect develop justly. I find neither argument compelling when they come a priori, as abstract blanket-rules totally disconnected from particular contexts.

Context matters. EFF pundit and advocate Tembeka Ngcukaitobi seemed to have this in mind in his representations on behalf of the Nelson Mandela Foundation against the flag. He appealed to the Equality Court to declare the 1928 flag a form of illegal hate speech, even when hung “at home” in the “bathroom”, and he grounded his appeal in a call for evenhandedness based on a previous ruling by the Equality Court: “The remedy we seek is a cut-and-paste of the remedy that AfriForum got against Malema.”

Ngcukaiboti was referring to the Equality Court’s 2011 indictment of Julius Malema, which ruled against him for hate speech for repeatedly singing shoot the boer/dubula ibhunu. The state intervened there, so surely the courts must treat like-with-like and indict AfriForum for waving the flag, too.

I accept Ngcukaibti’s invitation to get past the abstract and look rather seriously at the facts of these two particular cases.

The first fact is that, between 2011 and 2019, Julius Malema augmented his power at a rate which was only outmatched by now deputy president David Mabuza. The Equality Court’s indictment played a key role in this rise to power. In 2011, Cosatu, the SACP and factions of the ANC called Malema’s indictment racist, dehumanizing, and amounting to bullying “the black child” who just wanted to sing for freedom. When Malema was elbowed out of the ANCYL, partly based on the indictment, he used the anti-establishment kudos he gained as a martyr of “white” and “colonial” oppression by the Equality Court to distract from his Gucci lifestyle when founding a party whose founding manifesto would call “white monopoly capital” the “enemy”. The EFF would get a million votes and then more. Malema would go on to get tremendous power and patronage for himself and his fellow travellers.

So the Court scored an own goal in Malema’s case, making him more popular not less. This was not, perhaps, what Ngcukaiboti had in mind when he called for “cut and paste”. Instead his claim was that since a general prohibition was declared against the kill the boer song, the same prohibition should apply to the flag. The only problem with this argument is that kill the boer was not forbidden. Here is the long forgotten Equality Court’s 2011 Order:

  1. The words (“the words”) set out below constituted hate speech on the occasions the first respondent sang them:-

1.1. awudubula ibhunu,

1.2. dubula amabhunu baya raypha.

  1. The first and second respondents are interdicted and restrained from singing the song known as Dubula Ibhunu at any public or private meeting held by or conducted by them (“the song”).
  2. The words and the song constitute hate speech.
  3. The morality of society dictates that persons should refrain from:

4.1. using the words,

4.2. singing the song. [Emphasis mine]

At first glance, item 3 – “The words and the song constitute hate speech” – looks like a blanket ban of the song as Ngcukaiboti avers. But points 1, 2 and 4 indicate otherwise. Point 1 says “the words” were hate speech “on the occasions” in question, while point 2 forbids Malema and the ANC from singing the song ever again.

If this is all that had been said there might have been confusion. If the words were the problem, why are Malema and the ANC “restrained” from singing the song? Well, point 3 then comes into play to say that (on the occasions) the song constituted hate speech too.

But still there could be reasonable doubt. The wording in 3 (“the words and the song constitute hate speech”) seems, out of context, to be a universal statement – a blanket ban. 4 comes into play, here, saying that as a general rule no one should sing the song. But it says this is a matter of “the morality of society” and not the rule of law.

In summary, the court ruled that on the particular “occasions” in question both the words and the song constituted hate speech (1, 3); that Malema and the ANC may not sing it again or else the police must intervene (2) – and that the song generally should not be sung though when others do sing it the private economy of ideas and shaming should act as the restraint while the courts intervene only on a case-by-case basis (4).

The order, however, has been revised by history. Due to media spin at the time, as well as dubious argument by Ngcukaitobi now, it has been presented as a declaration against the song itself rather than the particular singer due to particular abuses. This would be like banning matches rather than legally restraining a known and repeated arsonist from playing, in public, with great balls of fire – madness and totally inconsistent with a free society. So, once again, Ngcukaiboti’s call to “cut and paste” the indictment against Malema backfires.

It gets worse. I have toyi-toyied to kill the boer on stage and know what everyone knows who’s done it or seen it done. The really potent bit is the synchopated call-and-response blasts of taah-ta-ta taah-ta-ta that recall the crack of bullets. Malema just changed one word of the lyrics to “kiss the boer” at rallies after his indictment that propagated hatred against racial minorities and incited harm against property owners (“take the land it is yours!”). This has been done on the pretext that he was banned from saying the words when the Court’s order in point 2 clearly prohibited this kind of cheap trickery by banning him from singing the song.  And yet Malema has sung it ever since, again, and again, and again. The Equality Court lets it slide.

When advocate Ngcukaitobi said the AfriForum ruling should be a “cut and paste” of the Malema ruling, is this what he meant? Again, I think not. Imagine a South Africa in which it becomes increasingly popular to wave the apartheid flag in defiance of an unprecedented ban by scribbling the word “kiss” in one corner. The wavers would say, Hey, this is not the same as the flag the court banned, this flag is called: The Malema. This bloody stupid twist is exactly what is invoked if you take “cut and paste” half seriously.

The final argumentative implosion of Ngcukaiboti’s plea to “cut and paste” is the most spectacular. For now it is time to remember where this all began; the October 2017 Black Monday when spontaneous protests against farm murders erupted across the country. eNCA announced that the 1928 flag was being waved by nasty racists who wanted apartheid back. This in part turned out to be fake news; the original photo of the flag display came from an obscure birthday party that happened years before. Journalist Nickolaus Bauer publicly apologized for the false report.

Too late, however; the story stuck. Then Deputy President Cyril Ramaphosa, Cabinet members, MPs, the mainstream media (locally and globally) shamed AfriForum and discredited the protests and hardly any of these parties walked back their censure. In part, this might be because another image surfaced of the flag hanging over a bridge at the time, but there is no clear evidence that this was done by AfriForum members. For all we know it could have been done in a further effort to discredit the general protest. In other words, the anonymous bridge flag could have been a copycat of the original (if possibly accidental) false-flag attack.

AfriForum itself repeatedly tells its supporters it doesn’t want the flag flown at any AfriForum rally because it disapproves. And if this instruction was ever disobeyed then AfriForum has every right to insist that it be proven so, and no serious effort was made to do so by the Mandela Foundation. They cited some media clippings in their background information, but the Foundation’s call for relief did not ask the court to rule against a burden of proof called “beyond reasonable doubt” or even a balance of probabilities on whether AfriForum ever did actually wave the flag. No concrete case was brought against AfriForum for waving the flag, because, most likely, it never did. And that is the biggest difference between the 2011 case and the one before the court now.

The 2011 ruling included about 60 pages that summarized evidence about actual contexts in which Malema sang the song, showing why this hit the three criteria of hate speech – causing harm (trauma), inciting others to do harm, and inciting hatred against a group based on race.

In 2011, the Court was asked to rule on what did happen. Now the Court has been asked to rule on what did not happen, but might have taken place in a parallel universe. What did not happen at Black Monday was a mass call for apartheid to come back or for people to be harmed on the basis of race. What did not happen was that the apartheid flag was used to gather people from near and far to proudly display their hatred for the Rule of Law, the Bill of Rights, and democracy. Instead the flag’s appearance, even as fake news, drove people to stay away from the rallies and discredit them ex post.

With this all in mind, it seems impossible that Ngcukaiboti was asking the court to “cut and paste” the same principle across the two cases. Rather, he seems to have been asking the court to cut some facts from one case and paste them onto the other. In particular, he might have been asking the court to reason that since there were particular instances in which Malema actually sang kill the boer demonstrably to incite harm and hatred and boost his own power, so too must there surely be particular instances in which AfriForum waved the flag for the same Machiavellian reasons. Cutting and pasting facts, well let’s see if it works.

The Mandela Foundation’s original application did not ask the court to indict AfriForum for a particular instance of waving the flag and instead sought a forward-looking declaration that the flag may not be displayed. When advocate Mark Oppenheimer, arguing for AfriForum, pointed out that the Courts are generally obliged to look at concrete cases rather than rule on forward-looking, abstract, debates, the Foundation changed its tune. At the end of day two in its representations Ngucukaibot said that AfriForum did in fact wave the flag and no worries about interrogating the evidence, because “cut and paste”. To back it up, Ngcukaitobi also said that AfriForum “grooms” their children to be “racist”, an evidence-free bit of slander that was unbecoming of the distinguished robe he wears dangling off one shoulder.

The flip-side of this extraordinary bait-and-switch is that, until the last minute, the proceedings were dominated on the Foundation’s side by arguments for why no particular instance is pertinent for the case to be ruled on. This, they argued, was because all possible displays of the flag amount to hate speech (outside academia, journalism and art). Counter-examples abound. Like the ANCYL’s political call to display the flag (with copies of that book about Ace Magashule) and then burn them both thereby mocking apartheid and white journalists. Or consider black and white veterans celebrating victory against the Nazis in old army flag-adorned regalia. Flying a flag upside down is a near universal sign of desecration so if someone flew the flag upside down to insult apartheid nostalgists with an upside-down way of thinking, the Foundation would have had to claim that this should be forbidden, too. Because in all contexts (outside of art, academia and journalism) they say flying the flag means I love apartheid and hate black people and want to incite others to harm South Africans. How they expect this abstract blanket rule to gain the force of law in a considered judgment I cannot tell.

That is not to say that all of AfriForum’s arguments were bulletproof. Parliamentary legislation against hate speech talks about prohibiting “words”, Oppenheimer argued, which strictly limits the court to policing words and not “symbols” or other forms of expression. Therefore under the current law, he concluded, the case must be thrown out without even considering the details because a flag is not a word.

Now I’m not a lawyer but check this. The 2011 order against Malema quoted above clearly distinguishes between the mere “words” and the “song” kill the boer, which includes non-linguistic forms of expression. And it says both constituted hate speech on specific occasions. And it restrains Malema from singing the song ever again. So there is a clear precedent for ruling beyond words and banning particular persons from expressing themselves beyond “words” too. If Ngcukaiboti had wanted to score a point against AfriForum he could have drawn on this precedent, literally “cut and paste” from the Malema indictment, to argue that Oppenheimer’s argument about “words” versus symbols was sprurious. Maybe Oppenheimer could have struck back with a good counterpoint. I don’t know, it never came up.

The most pertinent question surely is this. What about the feelings of real black people who look at the flag and are traumatized. Is this not relevant? This question was effectively asked by Deputy Judge President Phineas Mojapelo, who was presiding over the case. A most lucid question.

The answer is clearly no. Trauma is relevant. In the week before the election, the apartheid flag was on display on almost every major news platform, in pictured articles to cover the case. Surely this has traumatized many people. On the radio, I’ve heard the case misrepresented again and again as an appeal to stop AfriForum from gaining support by calling to bring back apartheid, surely traumatizing many people who don’t know better. In 2014, Ramaphosa campaigned on the line that not voting for the ANC is the same as bringing back apartheid, surely an extremely traumatizing statement. It is hard to imagine how words could be more traumatic than that.

But neither Ramaphsoa, nor the newspapers that display the flag, should be censured despite the relevance of these traumatic effects. Trauma is relevant but not a sufficient basis for the Court to intervene. Incitement, a clear and deliberate rallying cry for others to do harm, is needed also. And though Ramaphosa invoked the fake threat of apartheid to traumatize people in order to diminish votes for his political opposition, this does not qualify as an incitement to do harm. Trauma is a currency in this country that many trade to their own benefit and this is most relevant.

The 1928 flag that flew over apartheid has not, however, been waved at a rally to harm others in my lifetime. I hope it never does. And there is civic pride to be drawn from the fact that there is not one proven case of the flag being used to rally political support to mobilize a hateful cause. A civic pride that swells when you think of every instance in which the new and beautiful flag has been waved, voluntarily, without any law to force it, in bathrooms and living rooms and on the side-windows of cars and by the tens of thousands in our stadia.

The question now is, will South Africa go ahead and decide that the old flag is so unpopular among black and white alike that it needs to be banned by the law? I don’t know. Maybe, now that 8 May has come and gone, the case’s true purpose has already be served. Judgment can be expected some time this month (May).

Gabriel Crouse is the George F D Palmer Financial Journalist Trust Fellow at the Institute of Race Relations (IRR), a liberal think tank that promotes political and economic freedom.

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